Beynon v Manthey[2015] QDC 252

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an assessment of damages for defamation. The reason for the assessment is that the defendant failed to file a defence in this action.

2. [2]
   Despite this the defendant appeared at the hearing of the assessment and placed evidence before the court.

Statement of claim

3. [3]
   In the statement of claim, the plaintiff alleges that he is the managing director of Cigarette and Gift Warehouse (Franchising) Pty Ltd and is the father of four children: aged 16 (“V”), 14, 4 and 3 years of age at the relevant time.

4. [4]
   The defendant was the nanny for the plaintiff’s children between 16 June 2014 and 31 March 2015. She signed a confidentiality agreement on 4 December 2014 prohibiting her from disclosing information about the personal affairs of the plaintiff and his family.^[1]

5. [5]
   Despite this, in or about May 2015 the defendant participated in a recorded interview with A Current Affair.

6. [6]
   During the course of the interview, she stated:

“MM: I valued my job and I loved that family, so you turned a blind eye.

 …

MM: I feel that everyone there is a puppet, like some sort of pawn in some sort of game.

 …

MM: Just this crazy life with people in and out of their house. I can understand if this is something Travers wants to do, but do it somewhere else, don’t do it in the family home. Like shield your children away from it.

 …

MM: [having been shown a photograph depicting a person eating sushi from the naked body of Taesha Beynon, or having had the photograph described to her the defendant said] I know that the younger girls were there when the sushi was laid over Taesha.

 …

MM: What breaks my heart…I don’t want them to think this is normal. I don’t want V to think that this is how you treat women. I don’t know how Travers can look at it and think that he would want men treating his daughters like this.

 …

MM: [during the course of a discussion about the plaintiff’s 13 year old daughter the defendant said words to the effect of], ‘she often spends days at a time sleeping at my house’, [to which she then added] I don’t think she wants anything to do with it, she wants normal, they all want normal.

 …

MM: Up until the last two parties, all four children were there.

I: So you could see the three and four year old waving from the balcony …

MM: … Ah-ha …

I: … with the party happening beneath. Is that good enough.

MM: No, they should’ve always not been there.

I: So what was happening at the party that they were watching.

MM: Just the drinking, the yahooing, nakedness.

I: Where were the older kids.

MM: At the parties. They’d attend all the parties.

I: Who would be there with them.

MM: Their friends. They were allowed to invite any of their friends from school.

I: Were they drinking.

MM: Yes.

I: Are you in any doubt about that.

MM: No.

I: Why. How do you know.

MM: Because I have watched them. I would tell them to cut V off the bar. That he wasn’t allowed to drink anymore when I thought he had had too much. It was only his the last party at his birthday that parents had to sign forms and that the underage had arm bands.”^[2]

7. [7]
   It is alleged that the natural and ordinary meaning of the words in the broadcast are:

1. (a)
   the plaintiff is not fit to be a parent because he allowed his young daughter to watch while photographs were being taken of people eating sushi from her mother’s naked body;^[3]

2. (b)
   the plaintiff is a reckless parent because he allowed his young daughter to watch while photographs were being taken of people eating sushi from her mother’s naked body;^[4]

3. (c)
   the plaintiff is not fit to be a parent because he hosts debaucherous parties for adults, in his family home, in the presence of children;^[5]

4. (d)
   the plaintiff is a reckless parent because he hosts debaucherous parties for adults, in his family home, in the presence of children;^[6]

5. (e)
   the plaintiff is not fit to be a parent because he allowed his underage son to drink excessive amounts of alcohol;^[7]

6. (f)
   the plaintiff is a reckless parent because he allowed his underage son to drink excessive amounts of alcohol.^[8]

8. [8]
   It is alleged that by reason of the publication of the defamatory meanings the plaintiff has been exposed to ridicule and contempt, has had his reputation injured, and has suffered hurt and embarrassment.^[9]It further alleges he has suffered loss and damage as a consequence of the breach of the confidentiality agreement.^[10]Aggravated damages were originally claimed,^[11]although the claim for aggravated damages was abandoned at the hearing.

Evidence before the court

9. [9]
   The plaintiff himself has not provided an affidavit. There is therefore no evidence from him as to the hurt and ridicule he has suffered^[12].

10. [10]
    Cherie Orevich, in an affidavit sworn 21 September 2015, produces the confidentiality agreement and says that a video of the broadcast referred to in the statement of claim can be found on the A Current Affair website.

11. [11]
    The defendant herself gave evidence. She agreed to saying everything which is pleaded in the statement of claim. However, her evidence was that everything that she talked of was already on social media. She produced a number of photographs of the plaintiff’s Instagram account to which objection has been taken by the plaintiff.^[13]

12. [12]
    Exhibit 3 contains a photographs of the plaintiff and his son with four women in bikinis. The son is holding a glass or cup. There are 97 “likes” to that photo. Of course it may be others have seen it but not “liked” it. The heading is “candyshopmansion.”

13. [13]
    There are other photographs without the son of bikini clad women, two of whom have their bottoms facing towards the camera. There are 3655 “likes” to that photo.

14. [14]
    Exhibit 4 is a photograph of the plaintiff’s Instagram account which shows a photograph of his 16-year-old son in front of bottles of alcohol with topless women with his fingers up in a victory salute. There are 110 “likes” to that photo.

15. [15]
    Exhibit 5A is a photograph of the plaintiff holding his son who is holding up a clear drinking container with an opaque liquid. There are 66 “likes” to this photo.

16. [16]
    Exhibit 5B is a photograph of the plaintiff and his son with two women with each of them holding a clear drinking container; there are 34 “likes”.

17. [17]
    Exhibit 6A is a photograph of the plaintiff’s wife naked on a table, covered in sushi, with bikini clad woman and the plaintiff in the area. There is a second photograph (Exhibit 6B) which has one of the women placing sushi towards the vaginal area of the naked wife. I notice that in the first photograph there are 897 “likes”, and in the second photograph, 5,860 “likes”.

18. [18]
    Exhibit 7 is a photograph of the plaintiff with a number of bikini clad women with the son in the background; there are 2,613 “likes” and the caption is “candyshopmansion MY LIFE, MY CHOICES, MY MISTAKES, MY LESSONS, MY FAMILY…NONE OF YOUR BUSINESS!!!”

19. [19]
    As I say, the evidence is that these photographs have been readily available on Instagram. This was not challenged by the plaintiff’s counsel.

Plaintiff’s submissions

20. [20]
    The plaintiff in his submissions^[14]submits as follows:

1. (a)
   it may be taken as an admitted fact that A Current Affair is a high rating current affairs program broadcast throughout Australia on Channel 9;

2. (b)
   the defendant’s liability extends to damage caused by the publication nationally;

3. (c)
   the imputations pleaded in paragraph 6 have been proved;^[15]

4. (d)
   the meanings are defamatory to the plaintiff in that on any view they would cause people who heard them to think less of him;

5. (e)
   there was widespread damage done by the publication of the not insignificant defamatory meetings;

6. (f)
   an award of around $100,000 is appropriate;

7. (g)
   a number of comparable decisions were referred to in these submissions.

Admissibility of the photographs

21. [21]
    The plaintiff objected to the admission of the photographs tendered by the defendant.^[16]The plaintiff submitted that they were not relevant as there was no issue liability in this case, there being no defence.

22. [22]
    In Gateley on Libel and Slander^[17]it is said that evidence of general bad reputation is admissible in mitigation of damage but not evidence of particular acts of misconduct on the part of the plaintiff.

23. [23]
    However in ABC v McBride^[18] the New South Wales Court of Appeal considered a situation where the plaintiff sued the ABC for publishing material with imputations that the plaintiff deliberately exposed women to danger and acted to endanger the health and lives of women. The ABC pleaded in mitigation of damage that he did not have a good reputation in the practice of his profession and relied on findings against him of scientific fraud. 

24. [24]
    It was held that a defendant may rely on directly relevant facts which in other circumstances might have been ingredients of a defence of justification as mitigation of damages. Relevant evidence of bad character must be confined to the relevant “sector” of the plaintiff’s reputation.^[19]

25. [25]
    Fitzgerald AJA considered such evidence may be relevant to causation.^[20]

26. [26]
    McBride was successful in having the reputation particulars struck out.

27. [27]
    McBride was followed in Channel Seven Sydney Pty Ltd v Mahommed.^[21]

28. [28]
    McColl JA held that the fundamental requirement of good or bad character evidence is it should be directed to “that sector of a man’s character which is relevant”.^[22]In that case her honour held the trial judge was correct in his determination of the relevant sectors.^[23]

29. [29]
    In this case, I consider the relevant sectors to this evidence are:

1. (a)
   whether debaucherous parties were held at the house;

2. (b)
   whether his wife was naked and covered in sushi;

3. (c)
   whether his 16 year old son was exposed to these parties.

30. [30]
    I consider the evidence tendered by the defendant to be relevant to the imputations pleaded and therefore admissible. It is not simply evidence of irrelevant misconduct.

31. [31]
    The evidence reveals these photographs were published to a large number of people.

32. [32]
    They were associated with the plaintiff who operated the Instagram account “candyshopmansion”.

33. [33]
    In those circumstances it seems to me that the photographs are very relevant to the nature of the damage or harm suffered by the plaintiff. Indeed, I note that proof that one or more of the imputations are substantially true then this may be relied on in mitigation of damage.^[24]

General principles

34. [34]
    Words are defamatory of a person if they lower the plaintiff in the estimation of right thinking members of society generally.^[25]

35. [35]
    Upon publication of defamatory material damage to reputation is presumed.^[26]

36. [36]
    In Cerutti & Anor v Crestside Pty Ltd & Anor^[27]Applegarth J noted that an award of general damages serves three purposes. Firstly, to compensate the person defamed for the harm. Secondly, to give consolation for the personal distress and hurt caused to the plaintiff by the publication. Thirdly, to vindicate the plaintiff’s reputation.

37. [37]
    In quantifying damages in defamation the court is obliged to ensure that there is an appropriate rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.^[28]

38. [38]
    A plaintiff is not required to prove damage to reputation and once a finding as to liability is made damages must be awarded.^[29]Indeed there is no requirement on a plaintiff to call evidence that in fact people thought less of him or her as a result of the publication.^[30]

39. [39]
    A damages award may also reflect the “grapevine” effect.^[31]The sufficiency of the amount awarded is determined by a reference to circumstances past and present as well as what is required to vindicate the plaintiff’s reputation in the future.^[32]

40. [40]
    In deciding the amount appropriate the Defamation Act requires two matters to be considered. Firstly, the cap on damages^[33]and secondly, as I noted earlier, the appropriate and rational relationship between the harm sustained and the amount awarded.

41. [41]
    In Cerutti^[34]Applegarth J noted that the sum awarded must be “at least the minimum necessary to signal to the public the vindication of the appellant’s reputation”.^[35]

42. [42]
    Applegarth J also noted that the awarding of compensation for harm that is not measurable in money is a familiar task to judges. However, what is awarded in a defamation case is different to what is suffered in a personal injuries case. Also comparisons with awards of general damages in personal injury cases are difficult.^[36]A court is entitled to consider the size of the award compared with other awards and trial judges may take into account comparable cases but caution has to be used in looking at any other award of damages.^[37]Caution must be applied in looking at cases in other jurisdictions.^[38]

43. [43]
    A good summary of the principles is to be found in Hockey v Fairfax Media Publications Pty Ltd & Ors^[39]where White J at [446] said:

“The parties referred to several of the leading cases containing the principles to be applied in the assessment of damages and, in addition, to Ali v Nationwide News Ltd [2008] NSWCA 183 at [70]-[78] and to Cripps v Vakras [2014] VSC 279 at [549]-[563] in which the principles have been summarised recently. Drawing on the various authorities to which counsel referred, the following principles can be identified as being particularly pertinent to the assessments in the present case:

1. (a)
   Damage to reputation need not be proved as it is presumed: Bristow v Adams [2012] NSWCA 166 at [20]-[31];

2. (b)
   Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them: Cassell & Co Ltd v Broome [1972] AC 1027 at 1125;

3. (c)
   A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;

4. (d)
   The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3];

5. (e)
   The circumstance that a respondent has not provided any apology is pertinent: Herald and Weekly Times Ltd v McGregor  (1928) 41 CLR 254 at 263;

6. (f)
   Aggravated damages are a form of compensatory damages. They are not awarded to punish a respondent. Exemplary or punitive damages for defamation cannot be awarded: Defamation Act 2005  (NSW) s 37;

7. (g)
   An award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653;

8. (h)
   The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson  at 78 per Brennan J;

1. (i)
   In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085.”

Other cases

44. [44]
    The plaintiff relied on a number of other cases to justify the claim for $100,000.

45. [45]
    In Hockey v Fairfax Media Publications Pty Ltd & Ors^[40]Mr Hockey, the then Treasurer of Australia, received an award of $200,000 for the publication of a newspaper poster and on Twitter that he corruptly sought and was prepared to accept payments to influence his decisions as the Commonwealth Treasurer. I consider Hockey’s case to be different to the instant case. Mr Hockey was a man of arguably considerable reputation and the imputations were serious ones. There was no suggestion of a previous conduct like that shown in the photographs to which I have referred. I also note the plaintiff gave evidence of the hurt he had suffered unlike in the instant case.

46. [46]
    In a similar vein I think Flegg v Hallett^[41]may be distinguished. In Flegg the plaintiff also gave evidence of the harm he had suffered.

47. [47]
    In Cerutti^[42] I note there was a publication to fewer than five readers that an accountant had acted deceptively and dishonestly. An award of $20,000 was made in that case.

48. [48]
    Sierocki & Anor v Klerk & Ors^[43]was also relied on. In that case varying awards of damages for defamation ranging from $20,000 to $80,000 were awarded by Flanagan J.

49. [49]
    In that case there were 10 publications by email and on a range of websites. The defamatory material (which was accepted to be completely untrue) alleged the plaintiff was not to be trusted, his advice could not be relied on, he was evil, stupid, a liar, a fake, falsely represented his qualifications, was dodgy, operated a scam, preyed on innocent people and defrauded innocent people.

50. [50]
    Unlike in the present case the plaintiff relied on a number of affidavits including one from the first plaintiff himself that he and he his wife had suffered considerable humiliation and embarrassment and much distress.

Disposition of this case 

51. [51]
    It is my conclusion that the sum of $25,000 damages should be assessed. Aside from the matters mentioned above I have taken into account in particular the following factors in reaching that conclusion.

52. [52]
    Firstly, I note that the plaintiff has not filed an affidavit swearing that he has suffered hurt and ridicule as a result of the publication. While damage may be presumed I infer that in the absence of evidence from him damage is not as great as a case where the plaintiff swears to injury and hurt suffered, like e.g. in Sierocki. Indeed as stated in Hockey such hurt and ridicule forms a large part of the assessment of general damages.

53. [53]
    Secondly I have had full regard to the photographs tendered by the defendant. This in my view tends against great damage being suffered. Those photographs to me show that the plaintiff was a person who has published photographs of barely clad women and bare-breasted women present in his home^[44]; with his naked wife covered in sushi. They also showed that he was prepared to expose his 16 year old son to bare breasted women in his house, in a bar area. In those circumstances it seems to me that the damage would be far less than a person without such a reputation. 

54. [54]
    Thirdly I have regard then to the fact that not much damage flows from paragraphs 6(c), 6(d), 6(e) and 6(f) of the imputations by reason of the photographs published to numerous people on Instagram. There is still damage of course though because there is no defence and I must presume this to be the case.

55. [55]
    Fourthly I take into account there is no admissible evidence, on the other hand, that he allowed his children to watch while photographs were being taken of people eating sushi from his wife’s naked body, although he obviously has been complicit in allowing photos to be taken of his naked wife with sushi on her and indeed has published these.

56. [56]
    Fifthly I also have regard to the fact that the publication was made on A Current Affair, which is a widely watched program on Channel 9. No evidence was placed before the court as to the numbers of viewers but it can be presumed to be reasonably high. I also have regard, of course, to the fact that it was published nationally. I also have regard that it is still on the A Current Affair website.

57. [57]
    Finally I note the defendant conceded that the court should make a permanent injunction in respect of the publication of further defamatory comments by her and she did not conduct the litigation such that there should be an aggravation of damages.^[45]   

58. [58]
    I should mention that this decision is given in the context that a fully contested trial did not occur here, indeed, no defence was lodged by the defendant. Any decision here obviously enough would not bind any judge in determining any action as against A Current Affair.

59. [59]
    I will award interest at the rate of 4% per annum on the judgment sum from 27 May 2015 until the date of judgment.

Conclusion

60. [60]
    I assess the damages to be paid to the plaintiff by the defendant are in the sum of $25,000 together with interest in the amount of $367.